Jayaram Bhuyan Vs. State of Orissa and ors. - Court Judgment

P.K. Tripathy, J.

1. Initially petitioner filed this writ petition with multifarious prayer, viz., (1) to quash the order Annexure-17, i.e., the order in review passed on 14.10.1999 by opposite party No. 2, i.e., the Director, Higher Education, Orissa; (2) to quash the order Annexure-18, by which grant-in-aid has been provided to opposite party No. 4 as per the order of the Director dated 29.06.2004; and (3) to accord approval of the service of the petitioner against the first post of Lecturer in Oriya.

2. In view of the provision in Section 24-B of the Orissa Education Act, 1969, the matter relating to approval of the post is incidental and ancillary to claim and sanction of grant-in-aid. Such disputes initiated by any concerned parties are to be adjudicated by the State Education Tribunal. Appellate jurisdiction is conferred on the High Court under Section 24-C of the Act. After being conscious of the same, on the first date of hearing on 24.03.2008 petitioner submitted that he does not press the other relief save and except challenging the order Annexure-17 passed by opposite party No. 2 by reviewing the earlier order Annexure-9, which is to be read with the Enquiry Report, Annexure-8.

3. Thus, this writ petition remains confined to adjudication of the legal issues to the effect that:

(i) whether the Director of Higher Education, while exercising the power of appeal as per the Government instructions contained in Letter No. 13585(2) EYS Dt. 27.3.1983, has power and jurisdiction to entertain and decide a review petition; and

(ii) if it is held that power of review is vested with the appellate authority, then whether in this case he exercised such review power in accordance with law.

4. Under the given facts and circumstances, it is not necessary to go into the other various details in respect of the other disputes which have been mentioned in the writ petition and/or the counter of the opposite parties, but as noted above, not pressed at the time of hearing.

5. Factual aspect, which is not in dispute amongst the parties, is that Chitropala College at Akhuadanga in the district of Kendrapara was established in the year 1987 and got affiliation and concurrence in the year 1989. Pursuant to the advertisement made, petitioner participated in the Interview and was selected and appointed as Lecturer in Oriya (First Post) w.e.f. June, 1987. He remained in charge of Principal of the College for sometimes. On 02.09.1992, as alleged by the petitioner, a charge was framed by the Secretary of the Governing Body of the College on false and frivolous grounds so as to remove the petitioner from the Institution with a view to accommodate his daughter, i.e., opposite party No. 4 Susama Mohanty as Lecturer in Oriya, first post. Be that as it may, it appears from the aforesaid averment of the petitioner in the writ petition that the Secretary initiated and conducted a disciplinary proceeding against him. Petitioner submitted his show-cause on 19.09.1992, but on 17.05.1993 the Secretary of the Governing Body terminated the service of the petitioner. In that respect petitioner states that the order of termination was not approved by the Governing Body and petitioner could know about the aforesaid order of termination till 05.07.1993, i.e., after re-opening of the college (after the summer vacation). On 19.11.1993 petitioner preferred an appeal against that order of termination. Then the Director of Higher Education directed the Additional Director, Higher Education to conduct an enquiry and submit his report. Annexure-8 is the Enquiry Report of the Additional Director, Higher Education. He reported that, according to the statement of the members of the Governing Body, the Secretary proceeded against the petitioner vindictively. The consequence of the enquiry report was not ratified by the Governing Body on the proposal of the termination of the service of the petitioner and accordingly the Addl. Director suggested that the order of termination should be quashed. The Director, after considering the report and the contention of the parties, passed order Annexure-9 quashing the order of termination and directed the Governing Body to reinstate the petitioner in service and to pay his salary due to him from the management fund.

6. It is not disputed by the parties that the Secretary filed O.J.C. No. 3181 of 1995 challenging the order in appeal together with the direction for reinstatement passed by opposite party No. 2 (the then Director). In the meantime, on 31.10.1994 the President of the Governing Body passed the order of reinstatement, Annexure-10 and, as per resolution of the Governing Body dated 09.11.1994, Annexure-11, the order of reinstatement was approved, illegal act and activities of the Secretary was condemned and not approved and also steps were taken by removing him and appointing another Secretary.

7. On 20.06.1994 the Secretary filed representation, Annexure-13, with the prayer to review the order of reinstatement passed by the Director. Petitioner appeared in that proceeding and questioned the jurisdiction of the Director to review. The Director on 20.8.1997 passed order holding that he has power to review the order passed by his predecessor. Petitioner challenged that order in O.J.C. No. 12738 of 1997. On 28.07.2000 that writ petition was disposed of by a Division Bench of this Court quashing the order dated 20.08.1997 of the Director, expressing the view that the Director has no power of review in the absence of any provision in the administrative letter conferring appellate jurisdiction on opposite party No. 2. The Secretary challenged that order before the Apex Court in S.L.P. (Civil) No. 21483/2000/Civil Appeal No. 7416/2001. On 13.10.2001 that appeal was disposed of by the Supreme Court in the following manner:

Leave granted.

Heard the learned Counsel for the parties.

It has been stated before this Court that the Director has already heard the review petition and the matter is kept for pronouncement of judgment. Considering this fact and that High Court has interfered at the interim stage on the question whether the review petition was maintainable before the Director of Higher Education, the impugned order passed by the High Court cannot be sustained and has to be set aside.

In this view of the matter the impugned order is set aside. If the Director of Higher Education finally decides against respondent No. 1- Jayaram Bhuyan. It is open to him to challenge the said order and to raise the contention that review application was not maintainable before the Director. If such petition is filed the High Court would decide the said contention afresh in accordance with law after referring to provisions of the Orissa Education Act, 1969 and rules framed thereunder uninhibited by the observations made by the High Court or the order passed by this Court in this appeal. The appeal stands allowed accordingly with no order as to costs.

(Underlined by us to put emphasis)

8. After the above order of the Apex Court, on 14.10.1999 the Director, Higher Education (opp. party No. 2) passed order Annexure-17 upholding the order of termination communicated by the Secretary and cancelling the order dated 01.06.1994, Annexure-9 passed by the then Director allowing the appeal petition of the petitioner. In Annexure-17 the Director held that appeal filed by the petitioner was barred by time in terms of the instruction in Letter No. 13585 (2) EYS Dt.27.3.1983 of the Govt. of Orissa, the Secretary of the Governing Body was not provided with opportunity of hearing though the Governing Body was directed to place its materials, attempt of the Secretary not to reinstate the petitioner remained unheeded by the Governing Body and the Director should have also considered the representation of the Secretary in that respect, and that the Governing Body conducted the enquiry through a Sub-Committee and found the charges of misappropriation of college funds by the petitioner and in that respect keeping In view the seriousness of the charges and the conduct of the Governing Body always taking action through Secretary, the order of termination which was passed by the Secretary without the formal approval of the Governing Body should be maintained.

9. Admittedly, by the date of initiation of the Disciplinary Proceeding against the petitioner and on the date of issue of order of termination, the college was a recognized but unaided one. Therefore, in terms of Letter No. 13585 (2) EYS Dt. 27.3.1983 of the Govt. of Orissa, the appellate jurisdiction against termination order of staff was conferred on the Director. In that respect the letter is quoted for ready reference:

Sub:- Service Protection to the employees of unaided recognized educational institutions.

I am directed to say that it has been brought to the notice of Government that in some private unaided educational institutions the service of the employees are being terminated arbitrarily without assigning sufficient reasons and following the principles of natural justice. Such employees are not entitled to get protection under the Orissa Education Act, 1969 and Rules made thereunder. The teachers of aided Educational institutions only have the right of appeal before State Educational Tribunal under Sub-section (3) of Section 10-A of the Orissa Education Act, 1969. Though the employees of unaided recognized private educational institutions do not have any statutory right of appeal before any authority, Government feel that illegal termination of service in unaided recognized private educational institution should be stopped.

It has, therefore, been decided by Govt. that if an employee of any unaided recognized private educational institution feels that his services have been terminated arbitrarily, he may file an appeal before the Director of Public Instruction (HE), Orissa in the case of employees of unaided recognized Private Colleges, Director of Public Instruction (S), Orissa in case of unaided recognized private high schools and concerned Circle Inspector of Schools in case of unaided recognized private M.E., Schools within a period of one month from the date of termination who will dispose of it finally.

This matter may be brought to the notice of all concerned.

10. It is apparent from the aforesaid letter conferring appellate jurisdiction on the Director, Higher Education that power of review has not been conferred on it. That aspect was in detail considered by this Court in the judgment delivered in O.J.C. No. 12738 of 1997. The Supreme Court in the Civil Appeal set aside that order only on the ground that when the review petition was yet to be disposed of by the Director, the High Court, should not have interfered in the intervening period. At the same time the Supreme Court has made it clear that it is open to the petitioner to challenge the jurisdiction of the Director for entertaining review application. After the order Annexure-17 has been passed and after going through the judgment in O.J.C. No. 12738 of 1997, with due respect we accept the reasoning mentioned therein to hold that the Director has no power of review.

11. In that respect, it is appropriate to take note of two more judgments of the Supreme Court in the case of Tlkaram v. Mundikota Shlkshan Prasarak Mandal and Ors. : [1985]1SCR339 and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors. : 1987(32)ELT8(SC) . In both the cases the Apex Court has taken consistent view even by referring to the earlier precedent that in the absence of specific power conferred, review jurisdiction cannot be exercised by quasi judicial body while discharging the quasi judicial function. In that respect the citations relied on by the Secretary and also by opposite party No. 4 Sushama Mohanty are R.R. Verma and Ors. v. The Union of India and Ors. : (1980)IILLJ152SC ; Indian Bank v. Satyam Fibres (India) Pvt. Ltd. : AIR1996SC2592 , and Sambhu Prasad v. Kallash Chandra Das and Ors. 76(1993) C.L.T. 517 (Full Bench Decision of Orissa High Court). In Verma (supra) point fell for consideration was regarding power of review of the government on administrative side; therefore, that decision is hardly relevant to the issue at hand. In the case of Indian Bank (supra) review of the judgment of the consumer forum was upheld by the Supreme Court on the ground that fraud had been practiced to obtain the earlier order. In the present case at hand no such fact situation Is available, therefore, that citation is of no relevance. In the case of Sambhu Prasad (supra) it was held that the appellate Court under the House Rent Control Act has no power of review being not conferred under the statute, that ratio also does not in any way improve the case of the opposite party No. 4.

Thus, on a conspectus of the factual position and the legal position, as noted above, we find that the opposite party No. 2 has no power of review while entertaining the appeal under the above quoted order of the government and therefore the power of review exercised by the opposite party No. 2 was without jurisdiction and therefore illegal. Such ruling of this Court is sufficient to allow the writ petition filed by the petitioner and to quash the order Annexure-17. However, while in seisin of the matter, we feel it proper to record our opinion on the merit of the grounds stated in the review order.

12. The first of the points which was considered by the Director (in the review order, Annexure-17) was the ground of limitation for dismissing the appeal of the petitioner. In that respect he did not take note of the contention of the petitioner that the order of termination was not communicated to him by the Secretary, and after gathering that information he preferred the appeal on 19.11.1993. Limitation was never raised as a ground during the course of hearing of the appeal and in that respect Secretary could not have a separate status than that of the Governing Body. Therefore the manner in which the ground of limitation was considered is illegal.

13. Section 7 of the Orissa Education Act, 1969 (in short 'the Act') provides that every private educational institution shall have a Managing Committee or Governing Body duly constituted in accordance with the rules. In Sub-section (3) of Section 7, it is provided that:

7. Managing Committee or Governing Body of the educational Institution--

xx xx xx xx(3) The Managing Committee or the Governing Body, as the case may be, shall be responsible for the proper management of the institution and shall exercise such powers and perform such functions as may be prescribed.

14. In Rule 29 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991 (in short 'the Rule 1991'), power and function of the Governing Body has been provided. Clause (d) and (e) of that Rules reads as hereunder:

29. Powers and functions of the Governing Body--

XX XX XX XX(d) to ensure the appointments of teaching and non-teaching staffs are made in accordance with the provisions contained in the Act and these Rules and instructions of the Department.

(e) to ensure proper implementation of the provisions of the Act, these Rules, instructions issued by the Department or the Director in the matter of regulating conditions of service of staff including their appointment, salary, leave, pension, provident fund, age of retirement and disciplinary action.

Rule 32 of the Rules 1991 provides the power and function of the Secretary. Clauses (b) and (c) in that Rules provide that:

32. Secretary of the Governing Body

XX XX XX XX(b) convene meeting of the Governing Body with the approval of the President and draw up the proceedings of each meeting and forward a copy of the same to the Director after confirmation;

(c) give effect to the decision of the Governing Body and subject to its control do ail things incidental thereto.

In Rule 30, inter alia, it is provided in Sub-rule (5) that:

30. Meeting of the Governing Body--

XX XX XX XX(5) The Secretary of the Governing Body shall record the proceedings of the meeting and shall obtain the approval of the President thereon. The proceedings shall be placed for confirmation in the next meeting of the Governing Body. Minutes of the proceedings of every meeting shall be recorded serially for each academic session in a register containing pages continually machine numbered and certified to that effect by the Secretary of the Governing Body.

Rule 31 of the Rules 1991 provides that:

31. President of the Governing Body--

(1) The President shall ensure that the decisions taken in the Governing Body are implemented at meetings regularly.

In case the Secretary defaults in calling a meeting of the Governing Body as directed by the President, the President shall have power to make such arrangements as he deems appropriate so that the meeting may take place.

15. It is apparent from the above noted/quoted provisions of law that Secretary is the executing authority of the policies and decisions of the Governing Body. But when the Governing Body is available to participate In a proceeding, not noticing the Secretary cannot be termed as illegal or violation of the principle of natural justice. It is clear from the above quoted rules that it is the Governing Body of the college which does the administration and without its resolution no action taken by the Secretary is valid, legal and binding. Under such circumstance, to express a contrary view by the Director on the submission of the Secretary is itself illegal.

16. It is clear from the order Annexure-17 that the order of termination of service of the petitioner was not approved by the Governing Body. Under such circumstance, opposite party No. 2 could not have been taken a biased view in upholding that illegal order of termination passed by the Secretary. In other words, we find that the logic applied and the reasons assigned by the Director in the impugned order Annexure-17 are not only not supported by the provision of law but also a biased expression as against the order passed by his predecessor. At the same time we reiterate that the aforesaid view expressed by us is not the reason to quash the order Annexure-17. On the other hand, lack of power and jurisdiction of opposite party No. 2 to have review the order passed by his predecessor is sufficient to quash the order Annexure-17 and restore the order Annexure-9 passed by the Director on 01.06.1994.

The writ petition is accordingly allowed to that extent only.

Sanju Panda, J.

10. I agree.